WEST BENGAL STATE ELECTION COMMISSION & Ors. v. AUGUST 24

Judgment

100 SUPREME COURT REPORTS [2018] 10 S.C.R. 100 [2018] 10 S.C.R. A WEST BENGAL STATE ELECTION COMMISSION AND ORS. COMMUNIST PARTY OF INDIA (MARXIST) AND ORS. v. B C D E F G H (Civil Appeal No. 8515 of 2018) AUGUST 24, 2018 [DIPAK MISRA, CJI, A. M. KHANWILKAR AND DR. D.Y. CHANDRACHUD, JJ.] West Bengal Panchayat Elections Act, 2003 – Panchayat elections – Electoral process – Filing of nominations electronically – As regards, panchayat elections in the State of West Bengal, issuance of directions by the Division Bench of the High Court to accept nominations submitted in the electronic form – Names of those candidates to be published in the list of candidates contesting the panchayat elections – Challenge to – Held: High Court erred in issuing directions for the acceptance of nominations in the electronic form – Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations in the electronic form – Any reform of the electoral process to permit the filing of nominations electronically would have to be carried out by a legislative amendment – Moreover, the election process had already been initiated and the last date for the filing of nominations was over – Also the said directions issued by the High Court contrary to the principle of self-restraint which governs the exercise of the jurisdiction u/Art. 226 once the election process commences as also the direction contrary to the provisions of Art. 243 O – In view thereof, order of the High Court directing the acceptance of nominations in the electronic form set aside – Constitution of India – Arts. 226 and 243-O – Election Laws. Pursuant to the notification issued by the State Government for holding panchayat elections in West Bengal, the election process commenced. The election notification led to various litigations. Before the Division Bench of the High Court, issue arose as regards acceptance of nomination already filed in the electronic form by the State Election Commission. The Division Bench directed the State Election Commission to accept nominations in the electronic form of those candidates who had filed and submitted them electronically to the panchayat returning 100 WEST BENGAL STATE ELECTION COMMISSION v. COMMUNIST PARTY OF INDIA (MARXIST) 101 officers by the specified time. The names of such candidates were directed to be published in the list of candidates contesting the panchayat elections. Hence the present appeal. Allowing the appeals, the Court HELD: 1.1 While the Division Bench of the High Court may have been guided by a desire to ensure a free and fair election, the direction to accept nominations in the election form has clearly transgressed the permissible area within which the jurisdiction under Article 226 could have been exercised. The jurisdiction under Article 226 has to be exercised in a manner consistent with law. The Panchayat Elections Act contains detailed provisions in Part VI for the conduct of elections. Chapter VII contains provisions for the nomination of candidates. Sub sections 1 and 2 of Section 46 require that nominations have to be delivered in person by the candidate or through the proposer. Chapter I of Part IV of the West Bengal Panchayat Elections Rules, 2006 contains supplementary provisions inter alia for the nomination of candidates. [Para 16, 17] [113-H; 114-A-B; 115-E]

1.2 The provisions contained in the Panchayat Elections Act and rules constitute a complete code in regard to the conduct of the election, including in the matter of filing of nominations. Neither the Panchayat Elections Act nor the Rules contemplate the filing of nominations in the electronic form. Any reform of the electoral process to permit the filing of nominations electronically would have to be carried out by a legislative amendment. The High Court ought not to have issued a mandatory direction of this nature in the face of the specific provisions contained in the Panchayat Elections Act and Rules. Moreover, the election process had already been initiated. The last date for the filing of nominations was over. The directions issued by the High Court are in the teeth of the settled principle of self-restraint which governs the exercise of the jurisdiction under Article 226 once the election process commences. Moreover, such a direction would be contrary to the provisions of Article 243 O of the Constitution. In this view of the matter, the High Court was in error in issuing directions for the acceptance of nominations in the electronic form. [Paras 18, 19] [115-F-H; 116-A-B] A B C D E F G H 102 SUPREME COURT REPORTS [2018] 10 S.C.R.

1.3 While issuing notice in these proceedings, this Court directed that the election which was scheduled to take place on 14th May 2018 shall proceed in accordance with law and upon its conclusion, the results would be notified. However, the State Election Commission was directed not to notify the results in respect of constituencies where there was no contest, without the leave of the Court. An affidavit has been filed setting out the data in relation to uncontested seats, on behalf of the State Election Commission. The data placed on the record indicates that out of a total of 58,692 seats combined for Gram Panchayats, Panchayat Samiti and Zila Parishads, 20,159 seats have been uncontested. 3,096 seats out of the 16,860 seats representing 36.1 per cent of the total seats for Gram Panchayats have been uncontested. In the case of the Panchayat Samitis, 33.5 percent of seats were uncontested while 24.6 percent seats for Zilla Parishads were uncontested. [Para 20] [116-B-F]

1.4 Any dispute regarding the election has to be pursued in the manner which is provided in Part VII of the Panchayat Election Act. The Panchayat Elections Act is a complete code in regard to the conduct of the poll and for the resolution of disputes concerning the validity of the election. Article 243K entrusts the superintendence, direction and control over the conduct of all elections to the panchayats in the State Election Commission. The discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. [Paras 25-27] [118-B, F-G; 119-A-B]